The Challenges Facing Sir Alan Moses

09/05/2014 14:01 BST
|
Updated
08/07/2014 10:59 BST

In his short statement accepting his appointment as Chair of IPSO (the 'Independent Press Standards Organisation'), Sir Alan Moses uses the word 'independent' or 'independence' five times. 'The public and the press are entitled to a successful system of independent regulation' he says. He then refers to those who have voiced concerns about the ability of IPSO to be independent. In response he points to his career, which he says has been characterized by 'independent mind and independent judgment'. 'I do not', he says, 'intend to do away with that independence now'.

There is no reason to doubt Sir Alan's sincerity, nor his personal desire to act independently. But it will be fascinating to see how he tries to put his personal independence into practice from a position where the independence and freedom to manoeuvre is so seriously compromised and constrained before he has even stepped over the threshold.

IPSO has been structured in such a way that few significant decisions can be taken by the Chair, or his Board, without first consulting the industry. Sir Alan will not be expected to determine IPSO's regulations or structure, these have already been set by the industry, and will be maintained by the industry body behind IPSO - the Regulatory Funding Company (RFC).

The Regulatory Funding Company, the successor to PressBoF, is the power behind the whole IPSO system. Its role goes far beyond funding; it stretches into appointments, regulations, investigations, sanctions, arbitration, and the Code. Whatever the Chair's personal convictions, his powers are fundamentally circumscribed.

Nor is Moses the first judge to believe he can bring his judicial experience and previous independence to bear on press self-regulation, only to be frustrated once in position (see Roy Greenslade).

If Sir Alan wants to avoid the frustrations of his predecessors and does not want to be directed by the principal funders of IPSO (the biggest news publishers), then he will need to test his authority and independence of action early on. Right now he has more leverage then he will ever have later.

So what should Sir Alan do? He could start by trying to:

Free IPSO from direct financial control by the industry

'It is also clear to me that the funding made available to the PCC is barely sufficient to enable it to conduct its complaints handling functions effectively. Further, in so limiting the funding available to the PCC, the organisation was unable to exercise other functions that might be properly expected of a regulator, for example, in relation to investigations into industry conduct, and the promotion of standards' (The Leveson Report, p.1521)

If Sir Alan is to be independent, then IPSO will need sufficient funds. He will therefore need to:

Recalculate the budget for IPSO and tell the RFC how much IPSO needs to do its job properly (IPSO's budget is currently drawn up by the RFC)

Make the industry's budget commitment for a minimum of four years - so that it does not need renegotiation on an annual basis

This requires change to RFC Articles of Association 24.4

Make clear that it is IPSO's responsibility, not the RFC's to determine the pay of Board members, members of the Complaints Committee, and members of the Appointment panel.

Therefore IPSO Articles 24.2, 26.8, and 27.9 will need changing

Remove the RFC's veto over key IPSO responsibilities

'The powers of the Independent Funding Body [the proposed successor to PressBoF], which run throughout this proposal, undermine claims to independence of the regulatory system' (The Leveson Report, p.1,630)

An independent regulator does not give its funding body the power of veto over critical decisions.

Sir Alan should tell the newly appointed directors of the RFC that the RFC's veto in certain areas needs to be removed, such that:

The RFC does not have a veto over any changes to the IPSO regulations (IPSO Contract, Clause 7.1)

The RFC does not have a veto over any changes to the Code - variations to the Editors' Code, 'must first be approved by the Directors [of the RFC]' (RFC Articles 10.11)

The RFC does not have a veto over the arbitration service (IPSO Contract, Clause 5.4.3)

Give IPSO the freedom to make independent appointments

'The power of PressBoF in relation to appointments, the Code Committee and the funding of the PCC means that the PCC is far from being an independent body.' (The Leveon Report, p.1,576)

IPSO should not be required to take account of the views of the RFC when making appointments, either to the Board (via the Appointments Panel) or the Complaints Committee

This requires a change to IPSO Articles of Association 22.5 and 27.4 and Regulations 34

Give IPSO the freedom to investigate

'[I]f there is to be any value in the investigations process, which is itself the only genuinely new part of this proposal from the industry, then it is essential that it should be capable of operating without continually being frustrated by those subject to regulation' (The Leveson Report, p.1,636).

The power to investigate should be central to IPSO's effectiveness, but - as currently set out - it is difficult for IPSO to initiate an investigation, and once started, is open to frustration by publishers. To have the freedom to investigate and sanction Sir Alan should seek to:

Enable IPSO to investigate if it finds evidence of serious or systemic breaches of the Code

This requires a change to IPSO Articles of Association 8.1.2.b

Reduce the number of opportunities available to publishers to intervene and potentially obstruct investigations

This requires a change to IPSO Regulations 40-62

Find out the size of the investigations fund, and alter IPSO's articles so that IPSO - not the RFC - determines the size of the investigations fund

The IPSO Contract, Clause 10 will need altering to reflect this

Give IPSO - and the public - a proper say in the Code of Practice

In addition to outlining the public's right to privacy, and the publishers' responsibility to accuracy, the Code of Practice defines the 'public interest'. The definition, and interpretation, of public interest was central to the Leveson Inquiry. It would therefore seem strange to give Editors' decisive control over this definition (as the industry currently proposes to do). Therefore if he wants to comes closer to Leveson's recommendations and ensure the independence of regulation Sir Alan should:

Make the Code of Practice committee a subcommittee of IPSO, not - as now - of the RFC, including the power to appoint members, in consultation with the industry

This would require a change to RFC Articles 2.2

Appoint a minority of editors to the Code of Practice Committee

This should be part of IPSO's responsibility as the parent of the Code Committee and would require changes to RFC Articles 2.2 and additions to IPSO's articles of association

Institute a formal biennial open public consultation on the Code of Practice

This would require additions to the IPSO articles of association

Give IPSO the freedom to accept complaints on their merit, not based on who they come from

'The Board should have the power (but not necessarily in all cases depending on the circumstances the duty) to hear complaints whoever they come from, whether personally and directly affected by the alleged breach, or a representative group affected by the alleged breach, or a third party seeking to ensure accuracy of published information' (The Leveson Report, p.1,765)

If Sir Alan wants IPSO to accept complaints on merit, he will need to:

Remove the restriction that only allows IPSO to accept complaints from representative groups if they represent a 'significant' breach of the Code and there is a 'substantial' public interest in accepting the complaint

There is currently no obligation for IPSO to record whether complaints that cannot be resolved by the news publisher have breached the Code. Indeed it has the opposite obligation. After a publisher has failed to resolve a complaint IPSO is obliged to begin trying to mediate that complaint. No record is kept as to whether a mediated complaint breached the code. Without such a record IPSO will find it difficult to justify launching an investigation, especially an investigation justified by 'systematic' breaches of the Code. To give IPSO such evidence Sir Alan should:

Give IPSO the obligation to record all breaches of the Code that cannot be resolved at the publisher concerned

This would require a change to IPSO Regulations 14-21

Give IPSO adequate powers to secure meaningful remedies and end the practice of burying apologies

'the power to direct the nature, extent and placement of apologies should lie with the Board [of the Regulator]' (The Leveson Report, p.1,767)

If Sir Alan wants IPSO to have the powers the public believe are necessary (according to opinion polls), he will need to:

Give IPSO the freedom to direct the placement and prominence of apologies where it deems that one is appropriate

This would require a change to the IPSO Regulation 22

Take responsibility for the financial sanctions guidance (the guidance which determines the scale of fines)

This requires a change to IPSO Contract, Clause 1.1

This is not an exhaustive list, but were Sir Alan Moses to achieve these changes, then he might find he was much freer to maintain his independence of mind and judgment. It might also give IPSO some of the credibility it so sorely lacks at the moment.